Terms & Condtions

ARC FLEX FACILITY MONITORING TECHNOLOGY AGREEMENT

TERMS AND CONDITIONS

Effective Date: February 25, 2025

1. ARC SOFTWARE SUBSCRIPTIONS.  Subject to the payment of the ARC Subscription Fees for each licensed module of the ARC Software as specified in the Service Order, and provided CLIENT is not in breach of its obligations under this Agreement, ASURA grants to CLIENT and CLIENT agrees to accept from ASURA, a non-exclusive, non-transferable, non-sublicensable license to CLIENT during the Term to use the ARC Software modules and related documentation upon the terms of this Agreement and the relevant documentation, solely for its internal business purposes. Use of the ARC Software will be solely in accordance with the documentation, this Agreement, and such reasonable instructions as ASURA may provide from time to time.

CLIENT shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the ARC Software, including modems, hardware, servers, software, operating systems, networking, connectivity, web servers, and the like (collectively, “Equipment”). CLIENT shall also be responsible for maintaining the security of its Equipment, CLIENT’s login information, passwords, and files, and for all uses of CLIENT account or the Equipment with or without CLIENT’s knowledge or consent.

CLIENT agrees that unless authorized in writing by ASURA, it will not, and will not permit any Authorized User or other third party to: (1) permit any third party to access or use the ARC Software except its employees and contractors who require access in connection with CLIENT’S use of the ARC Software for its internal business purposes and or authorized to do so (“Authorized Users”); (2) distribute, sublicense, or resell the ARC Software to any person; (3) use the ARC Software in connection with any equipment, system, or website not supplied by ASURA, or for any illegal purposes, or in any manner that could damage, disable, overburden, or impair ASURA’s Services or the ARC Software or interfere with the ability of any other party to use ASURA’s Services or the ARC Software; (4) create or attempt to create or permit others to create or attempt to create, by reverse engineering or otherwise, the source programs for the ARC Software or any part thereof from the object program or from other information made available under this Agreement (whether oral, written, tangible or intangible); (5) upload or provide for processing, or use the ARC Software to store, display or transmit, any information or material that is illegal, defamatory, offensive, abusive, obscene, or tortious, or that violates privacy or intellectual property rights or laws;  (6) not to decompile, disassemble, reverse engineer, or otherwise attempt to derive the trade secrets embodied in the ARC Software, except to the extent expressly permitted by applicable law, (7) use the ARC Software or any Confidential and Proprietary Information of ASURA to develop a competing product or service, (8) use the ARC Software, or allow the transfer, transmission, export, or re-export of the ARC Software or portion thereof, in violation of any export control laws or regulations administered by the U.S. Commerce Department or any other government agency, or (9) remove, minimize, block, or modify any copyright, trademark, proprietary rights, disclaimer, digital watermark, or warning notice included on or embedded in any part of the ARC Software or its documentation.

Under no circumstances will ASURA be liable or responsible for any use, or any results obtained by the use, of the ARC Software in conjunction with any services, software, or hardware that are not provided by ASURA. All such use will be at CLIENT’s sole risk and liability.

PRRS performs and maintains regular database backups according to our retention policy appropriate for the particular system. PRRS incorporates database and system maintenance operations and processes designed to address data consistency, indexing, and integrity requirements and that also help improve query performance. PRRS has implemented and will maintain commercially reasonable measures intended to avoid unplanned interruptions to the ARC Software. PRRS will use commercially reasonable efforts to notify CLIENT in advance of planned interruptions to the ARC Software. The ARC Software depends on the availability of information from CLIENT, CLIENT’S payment providers and CLIENT’S other registration platforms (collectively the “Registration Data”).  CLIENT is responsible for providing the Registration Data necessary for us to provide the ARC Software Services. PRRS reserves the right, upon reasonable notice, to change the way CLIENT accesses the ARC Software or to deactivate, change, or require CLIENT to change user IDs, the domain name associated with CLIENT’S account, and any custom or vanity URLs, links or domains CLIENT may obtain through the ARC Software.

ASURA reserves the right to modify the ARC Software for any reason, without notice and without liability to CLIENT or any Authorized User, provided that such modifications will not materially degrade the functionality of the ARC Software as set forth in the documentation as of the Effective Date except to comply with applicable law or the guidance, policies, procedures, or requirements issued by any governmental authority. 

If, during the Term, ASURA makes available to its customers generally any future update, version, or release of the ARC Software, ASURA shall provide the update, version, or release to CLIENT at no additional charge. However, CLIENT shall not be entitled to receive updates, versions, or new releases that include new or different functionality for which ASURA imposes an additional charge to its customers. For the avoidance of doubt, ASURA may charge additional fees for functions, features, or modules not included in the version of the ARC Software marketed by ASURA and provided to CLIENT as of the Effective Date of this Agreement. CLIENT does not have the right to have access to any source code for the ARC Software.

2. INTELLECTUAL PROPERTY. CLIENT acknowledges and agrees that, except for the express licenses to CLIENT granted under this Agreement, as between the Parties, all right, title, and interest in and to (i) ARC Software, facility monitoring technology, and compliance services provided by ASURA, and all improvements, enhancements, customizations, configurations, derivatives, or modifications thereto, (ii) any software, applications, inventions, or other technology developed in connection with the ARC Software or ASURA’s Services, (iii) any and all ideas, processes, techniques, designs, architecture, and “know-how” embodying the ARC Software, (vi) the ARC Software documentation, and (v) all intellectual property rights related to any of the foregoing (collectively, the “ASURA Intellectual Property”) will always remain with ASURA or its licensors. CLIENT further acknowledges and agrees that it receives no title or ownership rights to any such ASURA Intellectual Property; title and ownership will remain and vest with ASURA or its licensors.

This is not a “work made for hire” agreement, as that term is defined in Section 101 of Title 17 of the United States Code. CLIENT will preserve the ARC Software from any liens, encumbrances, and claims of any individual or entity. CLIENT will not use any ASURA Confidential and Proprietary Information to contest the validity of any intellectual property rights of ASURA or its licensors. Any such use of ASURA Confidential and Proprietary Information will constitute a material, non-curable breach of this Agreement.

CLIENT may provide suggestions, comments, or other feedback (collectively, “Feedback”) to ASURA with respect to the ARC Software and related ASURA Services. Feedback is voluntary and ASURA is not required to hold it in confidence. ASURA may use Feedback for any purpose without obligation or restrictions of any kind. To the extent a license is required under CLIENT’s intellectual property rights to make use of the Feedback, CLIENT hereby grants ASURA an irrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with ASURA’s business, including the enhancement of ASURA’s products and Services.

3. MUTUAL CONFIDENTIALITY. ASURA and CLIENT understand that, while ASURA is providing the Services related to CLIENT’s Properties, CLIENT and/or ASURA may furnish to the other Party or may become aware of certain information which is confidential and proprietary to the other Party, including documents, files, reports, and other information and data relating to the other Party’s business and its customers (“Confidential and Proprietary Information”). ASURA’s Confidential and Proprietary Information includes non-public information regarding features, functionality, and performance of the Video System, ARC Software, and ASURA’s Services.

As a condition to, and in consideration of, ASURA and CLIENT furnishing Confidential and Proprietary Information to the other, ASURA and CLIENT agree that: (a) all such Confidential and Proprietary Information (i) will be kept confidential, (ii) will not be used other than in connection with the Services provided by ASURA to CLIENT and the Properties, and (iii) will not be disclosed to any third parties without the prior written approval of the other Party or to comply with any law or court order, provided, that prior to any such disclosure required by law or court order, each Party, as the receiving Party shall (1) promptly inform the other Party, as the disclosing Party, in writing of such requirement, (2) cooperate with the disclosing Party in limiting disclosure of its Confidential and Proprietary Information, and (3) only disclose that portion of Confidential and Proprietary Information necessary to comply with such law or court order; and (b) ASURA and CLIENT shall each take reasonable precautions to protect the Confidential and Proprietary Information of the other.

ASURA and CLIENT each agree that the foregoing shall not apply with respect to any Confidential and Proprietary Information that such Party, as the receiving Party, can document (w) is or becomes generally available to the public, (x) was in its possession or known by it prior to receipt from the other Party, as the disclosing Party, (y) was rightfully disclosed to it without restriction by a third party, or (z) was independently developed without use of any Confidential and Proprietary Information of the disclosing Party. Each Party’s Confidential and Proprietary Information shall remain the sole and exclusive property of that Party.

ASURA will collect, use, and disclose personal information under this Agreement in accordance with ASURA’s privacy policy, available at https://paralign.co/privacyPolicy.html, and if applicable, the general processing obligations outlined in Section 4 below.

ASURA and CLIENT will indemnify the other Party under Section 5 below for all losses incurred by the other Party arising out of or in any way related to a breach by the other Party of its obligations under this Section 3. The terms and conditions of this Section 3 will survive termination of this Agreement.

4. GENERAL PROCESSING OBLIGATIONS. To the extent ASURA processes personal information that is CLIENT information received in connection with the Services pursuant to this Agreement on behalf of CLIENT (“CLIENT Personal Information”) as a “service provider,” “contractor,” or “third party” (as those terms are defined in the California Privacy Rights Act or “CPRA”), “processor” (as defined in the GDPR and UK-GDPR), and/or any similar term under any other applicable law relating to the protection of personal information, (collectively, “Data Privacy and Security Laws”), (i) CLIENT shall provide any notices and obtain any consents or authorizations required by applicable Data Privacy and Security Laws for the processing that occurs in connection with the compliance services pursuant to the Agreement; and (ii) ASURA agrees to:
   1. Comply with this Agreement and all applicable Data Privacy and Security Laws relating to ASURA’s processing of CLIENT Personal Information with respect to this Agreement;
   2. Process such CLIENT Personal Information only on behalf of CLIENT and as otherwise permitted under applicable Data Privacy and Security Laws and solely for the nature, scope, and purpose for which the CLIENT Personal Information, or access to it, is provided pursuant to this Agreement, and in accordance with documented instructions received from CLIENT. CLIENT may provide the ASURA with general or specific instructions regarding the processing provided under this Agreement. Instructions shall be issued in writing or via e-mail. Notwithstanding the foregoing, ASURA may use the information as follows to the extent permitted by applicable Data Privacy and Security Laws: (i) for its internal use to build or improve the quality of the Services provided by ASURA, provided, however, that ASURA does not use the information to build or modify a profile about a consumer or their household to use in providing services to a third party, or cleaning or augmenting any information acquired from another source; (ii) to detect security incidents, or to protect against fraudulent or illegal activity; and (iii) as otherwise permitted under applicable Data Privacy and Security Laws;
   3. Not sell or share CLIENT Personal Information, or retain, use, or disclose CLIENT Personal Information outside of the direct business relationship between the ASURA and CLIENT or for any purpose other than for the Services specified in this Agreement;
   4. Notify CLIENT: (i) if it believes an instruction issued by CLIENT would violate applicable Data Privacy and Security Laws, in which case ASURA will be entitled to suspend performance of such instruction, until CLIENT confirms in writing that such instruction is valid under applicable Data Privacy and Security Laws; (ii) if it cannot comply with its obligations under this Agreement or applicable Data Privacy and Security Laws; and (iii) of any unauthorized processing of CLIENT Personal Information;
   5. Not combine CLIENT Personal Information received from or on behalf of CLIENT with information received from or on behalf of another person or persons, or collected from its own interaction with a consumer, unless such information is combined with CLIENT Personal Information to perform specific business purposes authorized under applicable Data Privacy and Security Laws;
   6. Notify CLIENT of its use of any new sub-processors and enter into a written contract with each such sub-processor binding the sub-processor to comply terms and conditions substantially similar to those set forth in this Agreement;
   7. Unless prohibited by applicable Data Privacy and Security Laws, promptly notify CLIENT of any request to exercise privacy rights under applicable Data Privacy and Security Laws (including, without limitation, to notice, access, erasure, opt-out, and opt-in) made to it directly by consumers whose information may have been delivered or made available to it pursuant to the Agreement, and shall provide other reasonable assistance to CLIENT, at CLIENT’s cost and expense, to help CLIENT fulfill its obligation to respond to such request under applicable Data Privacy and Security Laws, in each case taking into account the nature of the processing and the information available to ASURA;
   8. To the extent required by applicable Data Privacy and Security Laws, upon reasonable written request and at CLIENT’s cost and expense, provide reasonable cooperation and assistance to allow CLIENT to comply with its data security obligations under applicable Data Privacy and Security Laws, and/or comply with requests from data protection authorities and/or supervisory authorities, including but not limited to in the event of an investigation;
   9. Upon reasonable written request and at CLIENT’s cost and expense, permit CLIENT to monitor its compliance with this Agreement through measures including, but not limited to, ongoing manual reviews and automated scans and regular assessments, audits, or other technical and operational testing, to the extent required by applicable Data Privacy and Security Laws; and
   10. To the extent required by applicable Data Privacy and Security Laws, grant CLIENT the rights to (i) take reasonable and appropriate steps to ensure that ASURA uses the CLIENT Personal Information transferred in a manner consistent with CLIENT’s obligations under applicable Data Privacy and Security Laws; and (ii) stop and remediate any unauthorized use access to or use or disclosure of CLIENT Personal Information.
5. 1. By ASURA. ASURA will defend, indemnify, and hold CLIENT, its owners, members, directors, managers, employees, and agents (the “Client Indemnified Parties”) harmless from and against all costs, claims, expenses, damages, liabilities, or obligations, including reasonable attorney’s fees (collectively, “losses”), from third party claims or fines or costs imposed by any governmental authority arising out of or in any way related to: (1) a material, uncured breach by ASURA of the covenants, representations, and warranties made in the Agreement and these Terms & Conditions, (2) any claim by a third party that CLIENT’s permitted use of the ARC Software in accordance with this Agreement infringes that third party’s United States copyright, trade secret, or other intellectual property rights, or (3) the gross negligent or willful misconduct of ASURA, its employees, agents, or contractors in performing or falling to perform ASURA’s obligations under this Agreement (the “ASURA’s Indemnification Obligation”).

ASURA’s Indemnification Obligation shall be reduced to the extent of: (1) any breach by CLIENT of its obligations under or its representations or warranties made under this Agreement, including those made by or concerning the Property Configuration Form and Site Property Activation Form (2) any CLIENT Indemnified Party’s negligent or willful acts, errors, or omissions in performing or falling to perform CLIENT’s obligations under this Agreement; (3) any failure of a CLIENT Indemnified Party to implement updates or modifications to the ARC Software provided by ASURA, if such updates would have avoided the claimed infringement; (4) any instructions or specifications provided by a CLIENT Indemnified Party; (5) any failure of a CLIENT Indemnified Party to give ASURA timely notice of any claim for indemnification that prejudices ASURA’s ability to defend or settle any claim; or (6) any failure of a CLIENT Indemnified Party to cooperate with ASURA’s defense of a CLIENT Indemnified Party that prejudices ASURA’s ability to defend or settle any claim. Notwithstanding the foregoing, ASURA shall be relieved from ASURA’s Indemnification Obligation only to the extent its ability to defend or settle the claim has been prejudiced as a result of late notice or lack of cooperation with respect to the claim.

ASURA shall have the sole right to select defense counsel for and to settle any claim against a CLIENT Indemnified Party in its sole discretion so long as the CLIENT Indemnified Party is not required to contribute to the settlement and is given a complete release from the claim being settled.

ASURA will have no obligation to reimburse CLIENT for attorney fees and costs incurred prior to ASURA’s receipt of notification of a claim. CLIENT, at its own expense, may retain its own legal representation

In the event of a claim of infringement, ASURA has no Indemnification Obligation to CLIENT regarding any infringement of intellectual property rights based on: (1) compliance with any designs, specifications, or requirements CLIENT provides or a third party provides, (2) CLIENT’s modification of any ARC Software, ASURA Services, or modification by a third party, (3) the amount or duration of use made of any ARC  Software, ASURA Services, revenue CLIENT earned, or services CLIENT offered, (4) combination, operation, or use of any ARC Software or ASURA Services with non-ASURA products, software or business processes, (5) CLIENT’s failure to modify or replace the subscribed for ARC Software as required by ASURA, or (6) any ARC Software or ASURA Services provided on a no charge, on a beta or evaluation basis.

If, due to a claim of infringement, the ARC Software is held by a court of competent jurisdiction to be or is believed by ASURA to be infringing, ASURA may, at its option and in its sole discretion, (a) replace or modify the ARC Software to make it non-infringing provided that such modification or replacement contains substantially similar features and functionality, or (b) procure for CLIENT the right to continue using the ARC Software pursuant to this Agreement. If neither of these remedies is reasonably available to ASURA, ASURA may, in its sole discretion, immediately terminate this Agreement and return the prorated portion of any pre-paid, unused fees for the relevant ARC Software.

The provisions of this Section state the sole and exclusive obligations and liability of ASURA and CLIENT’s sole and exclusive remedy, for any claim of intellectual property infringement arising out of or relating to the ARC Software or this Agreement and are in lieu of any implied warranties of non-infringement and title, all of which are expressly disclaimed.

1. By CLIENT. CLIENT will defend, indemnify, and hold ASURA, its owners, members, directors, managers, employees, and agents (the “ASURA Indemnified Parties”) harmless from and against all losses from third party claims or fines or costs imposed by any governmental authority arising out of or in any way related to: (1) a breach or alleged breach by CLIENT of the covenants, representations, and warranties made in the Agreement and/or these Terms & Conditions; (2) the negligent or willful acts, errors, or omissions of CLIENT, its employees, agents, or contractors in performing or falling to perform CLIENT’s obligations under this Agreement (the “CLIENT’s Indemnification Obligation”) including, but not limited to, CLIENT’S provision of inaccurate or incomplete information in the Property Configuration Form and Site Property Activation Form, and (3) any use by CLIENT of the ARC Software in its business (e.g. providing data from CLIENT’s partners, storing personally identifiable data on CLIENT’s customers, issuing Notices, etc.).

CLIENT’s Indemnification Obligation shall be reduced to the extent of: (1) any breach by ASURA of its obligations under or its representations, or warranties made under this Agreement; (2) any ASURA Indemnified Party’s negligent or willful acts, errors, or omissions in performing or falling to perform ASURA’s obligations under this Agreement; (3) any failure of a ASURA Indemnified Party to give CLIENT timely notice of any claim for indemnification that prejudices CLIENT’s ability to defend or settle any claim; and (4) any failure of a ASURA Indemnified Party to cooperate with CLIENT’s defense of a ASURA Indemnified Party that prejudices CLIENT’s ability to defend or settle any claim. Notwithstanding the foregoing, the CLIENT shall be relieved from CLIENT’s Indemnification Obligation only to the extent its ability to defend or settle the claim has been prejudiced as a result of late notice or lack of cooperation with respect to the claim.

CLIENT shall have the sole right to select defense counsel for and to settle any claim against a ASURA Indemnified Party in its sole discretion so long as the ASURA Indemnified Party is not required to contribute to the settlement and is given a complete release from the claim being settled.

6. DISCLAIMER OF WARRANTIES; LIMITATIONS OF LIABILITY.
   1. DISCLAIMERS. EXCEPT FOR THE EXPRESS WARRANTIES MADE BY ASURA UNDER THIS AGREEMENT, AND TO THE EXTENT APPLICABLE, ASURA MAKES NO WARRANTY AND EXPRESSLY DISCLAIMS ANY WARRANTY CONCERNING THE RESULTS OF OR THE REVENUES TO BE GENERATED BY THE ARC SOFTWARE. THE ARC SOFTWARE IS PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND, AND ASURA AND ITS VENDORS AND LICENSORS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, OR TITLE/NON-INFRINGEMENT AND ALL SUCH WARRANTIES ARE HEREBY SPECIFICALLY DISCLAIMED.

ASURA DOES NOT WARRANT THAT THE ARC SOFTWARE WILL MEET CLIENT’S REQUIREMENTS, OR THAT THE ARC SOFTWARE IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE OR WEBSITE, OR THAT THE OPERATION OF THE ARC SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE ARC SOFTWARE WILL BE CORRECTED. FURTHERMORE, ASURA DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THE ARC SOFTWARE IN TERMS OF ITS CORRECTNESS, ACCURACY, QUALITY, RELIABILITY, SECURITY, APPROPRIATENESS FOR A PARTICULAR TASK OR APPLICATION, CURRENTNESS, OR OTHERWISE.

TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ASURA, ITS EMPLOYEES OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF ASURA’S OBLIGATIONS HEREUNDER.

THE ARC SOFTWARE MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CLIENT ACKNOWLEDGES AND AGREES THAT ASURA AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (A) VIRUSES, WORMS, TROJAN HORSES, AND OTHER UNDESIRABLE DATA OR SOFTWARE MAY BE TRANSFERRED OVER THE INTERNET; AND (B) UNAUTHORIZED USERS SUCH AS HACKERS MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CLIENT’S INFORMATION, WEBSITES, PROPERTIES, COMPUTERS, OR NETWORKS. CLIENT SHOULD BE SURE TO BACK UP ITS OWN SYSTEM PERIODICALLY TO ENSURE THAT ALL OF ITS DATA IS AVAILABLE TO CLIENT IN THE EVENT OF ANY LOSS OR DAMAGE.

1. LIMITATIONS OF LIABILITY.TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL CLIENT BE LIABLE TO ASURA, ANY ASURA INDEMNIFIED PARTY, OR ANY THIRD PERSON,  AND IN NO EVENT SHALL ASURA BE LIABLE TO CLIENT, ANY CLIENT INDEMNIFIED PARTY, OR ANY THIRD PERSON, FOR ANY PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING CORRUPTION OR LOSS OF DATA, REVENUE, PROFITS, GOODWILL, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT OR THE EXERCISE OR FAILURE TO EXERCISE ANY RIGHT UNDER THIS AGREEMENT, EVEN IF CLIENT OR ASURA, AS APPLICABLE, HAS BEEN PREVIOUSLY ADVISED OF OR WAS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES. AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY, CLIENT EXPRESSLY ASSUMES ALL RESPONSIBILITY FOR ANY SUCH DAMAGES THAT MAY RESULT IN ANY WAY OUT OF THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ITS USE OF THE ASURA SERVICES AND THE ARC SOFTWARE.

NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS AGREEMENT SHALL LIMIT ANY PARTY’S OR PERSON’S LIABILITY FOR THE INTENTIONAL OR WILLFUL MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY OR INTELLECTUAL PROPERTY RIGHTS.

THE TOTAL LIABILITY OF ASURA AND ITS VENDORS AND LICENSORS TO CLIENT OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHERWISE), SHALL NOT EXCEED THE AMOUNT OF THE SUBSCRIPTION FEES ACTUALLY PAID DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.

CLIENT expressly agrees that the Fees payable to ASURA hereunder have been negotiated and agreed to by ASURA based in part upon the foregoing limitation of liability. Nothing in this Agreement limits or excludes any liability that cannot be limited or excluded under applicable law. This limitation of liability is cumulative and not per incident.

7. INDEPENDENT CONTRACTOR. Nothing in this Agreement or the Parties’ performance under it will be deemed or construed to create a partnership, joint venture, or agency relationship between the Parties. ASURA is strictly an independent contractor which determines the methods and means of fulfilling its obligations under this Agreement subject to no control by CLIENT except to enforce the standards and terms expressly provided for by this Agreement.
8. CHANGE OF LAW. If there is a change of any federal, state, or local law, regulation, or rule, or any judicial or administrative interpretation of any law, regulation, or rule, which affects this Agreement, or the activities of either Party under this Agreement, which either Party reasonably believes in good faith will have a substantial adverse effect on that Party’s rights or obligations under or operations associated with this Agreement, then that Party may, upon written notice, require the other Party to enter into good faith negotiations to renegotiate the affected terms of this Agreement. If the Parties are unable to reach an agreement concerning any modification of the Agreement necessitated by such a change in law within thirty (30) days after the effective date of the Party’s notice for negotiations, then either Party may terminate this Agreement by written notice to the other Party in accordance with the Notice Section of the Agreement, subject to the effect of the termination provisions contained in the Agreement.

9. FORCE MAJEURE. Neither Party will be liable for any failure or delay in performing an obligation under this Agreement to the extent due to causes which are beyond its reasonable control, including acts of God, accidents, riots, war, terrorist acts, epidemics, pandemics, quarantines, civil commotion, breakdown of communication facilities, breakdown of web hosts, breakdown of internet service providers, natural catastrophes, governmental orders, governmental acts or omissions, changes in laws or regulations, national strikes, fires, explosions, and generalized lack or availability of raw materials or energy, and could not be avoided through the exercise of reasonable care and diligence (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing Party will (a) immediately notify the other Party to this Agreement, and (b) take reasonable steps to resume performance as soon as possible.

Notwithstanding the foregoing provisions of this Section: (a) a Force Majeure Event will not include financial distress nor the inability of a Party to make a profit or avoid a monetary loss or changes in market prices or conditions and (b) a Force Majeure Event will not excuse any delay or failure of a Party to perform its financial and payment obligations under this Agreement.

10. ENTIRE AGREEMENT; MODIFICATIONS. This Agreement, as to its subject matter, exclusively and completely states the rights, duties, and obligations of the Parties hereto and supersedes all prior and contemporaneous representations, letters, proposals, discussions, and understandings by or between the Parties. This Agreement may not be changed orally. Except as otherwise provided in this Agreement, for a modification of this Agreement to be effective, it must be in writing and signed by ASURA and CLIENT.

11. ASSIGNMENT/BINDING EFFECT; SUBCONTRACTING. ASURA and CLIENT may each assign its rights and delegate its duties and obligations under this Agreement with respect to any Property to any successor to its business operations or ownership of that Property, provided such successor expressly assumes the duties and obligations of the assigning and delegating Party for the benefit of the other Party and the assigning and delegating Party provides at least ten (10) days’ written notice to the non-assigning and non-delegating Party and may do so without the prior written consent of the other Party.

Except as provided by the foregoing sentence, neither Party may assign its rights or delegate its duties under this Agreement without the written consent of the other Party. Any purported assignment or delegation in violation of this Section shall be null and void. This Agreement and the rights, duties and obligations set forth herein will bind and inure to the benefit of ASURA and CLIENT, and their successors and permitted assigns.

Notwithstanding the generality of the foregoing, CLIENT acknowledges and agrees that some or all aspects of the ASURA Services may be provided by ASURA’s affiliates, agents, licensors, subcontractors, and legal representatives. The rights and obligations of ASURA hereunder may be, in whole or in part, exercised or fulfilled by the foregoing entities.

12. WAIVER. No right or obligation under this Agreement will be deemed to have been waived unless such waiver is evidenced by a writing signed by the Party against whom the waiver is asserted. Any waiver will be effective only with respect to the specific instance involved and will not impair or limit the right of the waiving Party to insist upon strict performance of the right or obligation in any other instance, in any other respect, or at any other time. No failure to exercise and no delay in exercising any right or obligation under this Agreement will operate as a waiver hereof.
13. SEVERABILITY. The Parties intend that this Agreement shall be enforceable to the greatest extent permitted by applicable law. Therefore, if any provision of this Agreement on its face or as applied to any person or circumstance is or becomes unenforceable to any extent, the remainder of this Agreement and the application of that provision to other persons, circumstances, or events, will not be impaired.
14. INTERPRETATION; CONSTRUCTION. This Agreement is the product of the Parties’ negotiation, and the Parties agree that the rule of contract construction or interpretation which provides that a contract is to be construed against its drafter has no application to the construction or interpretation of this Agreement.

References in this Agreement to “Sections” are to the Sections of this Agreement unless expressly stated to the contrary. Unless otherwise expressly stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, Subsection or other subpart. All headings used in this Agreement are for reference purposes only and are not part of this Agreement. All personal pronouns used herein, whether used in the feminine, masculine, or neuter gender, shall include all other genders, and the singular shall include the plural and vice versa. The words “include,” “includes,” “included,” “including,” “without limitation,” or the phrase “e.g.” shall not be construed as terms of limitation and shall, in all instances, be interpreted as meaning “including, but not limited to.”

15. GOVERNING LAW/VENUE. This Agreement will be construed, and the rights, duties, and obligations of the Parties will be exclusively determined in accordance with the substantive laws of the State of Colorado without application of its conflicts of law principles. If any legal action or other proceeding is brought in connection with this Agreement, the exclusive venue of such action will be in the state courts located in Arapahoe County, Colorado, and/or in the federal courts sitting in the City and County of Denver, Colorado, and the Parties waive any objections against and agree to submit to the exclusive personal jurisdiction of such courts. Each Party hereto waives any objections or defenses it may have based upon an inconvenient forum.
16. ATTORNEYS’ FEES. If any litigation or other dispute resolution proceeding is commenced between the Parties to this Agreement to enforce or determine the rights or responsibilities of the Parties, the prevailing Party or Parties in the proceeding will be entitled to receive, in addition to any other relief granted, a judgment or award against the non-prevailing Party or Parties, the amount of its reasonable attorneys’ fees, expenses, and costs incurred in prosecuting, defending, or otherwise participating in the proceeding. Such fees, expenses, and costs will include all statutory costs and disbursements, all costs associated with discovery, depositions and expert witness fees, and all out-of-pocket costs incurred by the prevailing Party. For purposes of this Section, the phrase “litigation or other dispute resolution proceeding” will be deemed to include any proceeding commenced in any court of general or limited jurisdiction, any arbitration or mediation, any proceeding commenced in the bankruptcy courts of the United States, and any appeal from any of the foregoing.